Caitlin Jimenez waters hemp plants at the cultivation facility for Colorado company CBDRx on June 9, 2015 in Pueblo. The company is focused on developing hemp products such as cannabidiol (CBD) oils. (Denver Post file)

DEA seeks dismissal of hemp industry lawsuit fighting drug code for “marihuana extracts”

The legal distinctions between marijuana and hemp are at the center of a debate in a federal lawsuit.

The Drug Enforcement Administration stands firm on its drug code for “marihuana extracts” in a brief filed Friday to the 9th U.S. Circuit Court of Appeals, and seeks to have a federal lawsuit by the hemp industry dismissed.

“We thought we’d see something new, and we’re a little surprised we didn’t,” said Patrick Goggin, an attorney representing the hemp industry in the case.

The lawsuit focuses on the DEA rule finalized in December that applies a Controlled Substances Code Number for “marihuana extract,” defined as products containing one or more cannabinoids — chemical compounds found within the plant species Cannabis sativa L. Among the claims made by the industry is that the rule amounts to a scheduling action in the Controlled Substances Act (CSA) for cannabinoids.

The DEA laid out various reasons as to why the legal challenge filed by the Hoban Law Group on behalf of trade group Hemp Industries Association and hemp businesses Centuria Natural Foods and R.M.H. Holdings Inc. is invalid.

In the brief’s primary arguments, the DEA claims the petitioners aren’t eligible to challenge because they didn’t participate in the rulemaking proceedings; the rule doesn’t restrict their activities or attach new penalties; and asserts the petitioners erred in arguing that the rule conflicts with the 2014 federal “Farm Bill.”

Goggin took issue with the DEA’s statements about the Farm Bill, which allowed states to enact laws allowing limited cultivation of industrial hemp. He also objected to the┬áDEA’s claim that the new code number applied “only to extracts derived from a “plant of the genus Cannabis.”

“We believe the rulemaking process is at the very least troubling and additionally there were intervening factors” between the time the rule was first proposed in 2011 and when it was finalized in December 2015, Goggin said, pointing to the federal legislation passed by Congress in 2014.

The 2014 Agricultural Act of 2014 included a definition of industrial hemp:

The plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

“It’s a simple fix: Replace genus Cannabis plants with ‘marijuana plants,'” Goggin said. “If you mean what you say, say what you mean. It goes back to the question: Why are you referring to it as genus Cannabis and the CSA, which defines marijuana and not the genus Cannabis?”

The DEA brief centered on procedural arguments and “fails to delve into substantive arguments,” Goggin said. “They have repeatedly misarticulated the intention of Congress in enacting the Farm Bill’s industrial hemp amendment.”

DEA spokesman Russ Baer said in an email the agency wouldn’t provide comment on pending litigation, but added that the “drug code was created to more efficiently prioritize, track, and approve prospective DEA Registrants that submit applications to handle and conduct scientific research with marijuana extracts. The code helps … distinguish scientific research between marijuana on one hand and marijuana extracts on the other.”

Goggin said that a counter-response to the DEA brief would be submitted in the next few weeks; the timetable for the court to issue a ruling was uncertain.